NICASTRI v THE SHERIFF OF NEW SOUTH WALES [1995] NSWCA 320

NICASTRI vy THE SHERIFF OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, CLARKE JA and SHELLER JA 6 December 1995

[1995] NSWCA 320

Gleeson CJ. In this matter senior counsel for the claimant, and counsel for the first opponent, are agreed that the court should make orders in terms of the Short Minutes initialled by me and placed with the papers.

The court is prepared to make those orders but, because they are based upon the premise that the learned judge at first instance, her Honour Judge Karpin, fell into error, including jurisdictional error, in her judgment of 18 February 1994, we should in fairness to her Honour indicate very briefly the basis upon which we are prepared to accept the concession now made by the first opponent.

Our willingness to accept the concession is closely related to the particular facts and circumstances of the events of 21 January 1994. On that day there was filed in court an application pursuant to s 42(3) of theBail Act. The accused was then before the court and had not previously been in breach of any condition of bail. The only reason why the application was not then and there dealt with in accordance with s 42(3) was one relating to the exigencies of the business of the court, which was sitting in vacation. No doubt her Honour had a very busy list on that occasion.

Her Honour later observed, when she was dealing with this matter in February, that the qualification expressed in s 42(3) was not one that had any bearing on the case and she would have had no reason in justice for not making an order for discharge if the court's business had permitted her to deal with the application on that day.

It is in those circumstances that counsel for the first opponent concedes that, when the matter came before her Honour again in February, the provisions of s 42(3) continued to operate, and were not to be treated as if, for example, they were to be read subject to s 4A of the Crimes and Forfeited Recognizances Act. On that basis her Honour should have dealt with the application under s 42(3) and it is not suggested there was any proper ground on which she could have refused to make the order for discharge.